Katzoff's article revolves around a document discovered by Yadin in the Judean desert. This is a contract with a date-picker which I will quote in full:
Year fourteen of Imperator Hadrian Caesar Augustus, (11) in the
consulship of Marcus Flavius Aper and Quintus Fabius Catullinus,three days before the Ides of September, according to the numbering of the new province of Arabia year twenty-five, (12) on the twenty-fourth of Gorpiaios, (13) in Maoza in the district of Zoora,Simon son of Jesus son of Ananias(? (14)) to Babathas daughter of Simon, both domiciled in Maoza, greeting.
I [Simon] acknowledge that I have bought from you [Babatha] the date crop of the orchards of Judah son of Khthousion, your late husband, in Maoza, called Pherora orchard and Nikarkos orchard (15) and the third called Molkhaios's, which properties you distrain, as you say, in lieu of your dowry (16) and debt [owed you]. (17) For the aforesaid year I will pay to you for the said orchards forty-two talents (18) of first and second "splits" (19) and of Syrian (20) and Naaran(?) (21) [dates] two koroi (22) and five sata, (23) weighing them for you in your house by the scales of Maoza and likewise measuring them for you in your house by the measure of Maoza, [all done] through my guarantor and surety Sammouos(? (24)) son of Menahem of the said Maoza. Whatever is over and above in the aforesaid orchards, those dates I will take unto myself in return for my labors and expenses. And if I do not provide you with the aforesaid dates in full at drying time, I will give you for each several talent [of "splits"] two denarii and of Syrian and Naaran(?) one "black." (25) Both upon myself and upon my property or from my guarantor, from whichever the person acting through or for wishes, right of execution shall be valid everywhere, the formal question having in good faith been asked and acknowledged in reply.
(26) [second hand, Aramaic] Shim'on son of Yeshu'a: I have purchased from Babatha (Witnesses:) (one or more names missing) Yeshu'a son of Yeshu'a, witness Yohsef son of
Hananiah, witness [first hand, Greek] Written by Germanos, librarius Yehohanan son of Menahem, witness
On the back: Shammu'a son of Menahem has written: talents forty and ... k(ors) two se'ahs five.
The one added sentence in P. Yadin 22 is: ... I [Babatha] shall clear the right to the aforesaid orchards foryou [Simon] of every counterclaimant, and if anyone enters a counterclaim against you because of your purchase and I do not firmly validate [it] for you as aforestated, I shall be owing to you in return for your labors and expenses twenty silver denarii, interposing no objection.
The question is:
There is something very odd here. Simon buys the date crop and pays for the dates with those self-same dates! "Who would sell a crop of dates in exchange for dates?" asks Benjamin Isaac. (27) Furthermore, as we read down in the document, Simon says, "Whatever is over and above in the aforesaid orchards, those dates I will take unto myself in return for my labors and expenses." What does Simon mean, we ask, "in return for my labors and expenses"? They are his dates; he just bought them..... (See at length for various difficulties with this document).
He points to the Mishna in Kesubot that says:
(mKet 9.3): [A man died leaving a wife, a creditor and heirs] ... If he left produce detached from the ground, the one who seized first keeps what he seized ... The excess, R. Tarfon says, should be given to the weaker party. R. Akiva says, There is to be no mercy at law.The property is to be given to the heirs, for all the others must take an oath [in order to collect], but the heirs need not take an oath.
Katzoff suggests (based on R' Akiva's alleged connection to Bar Kochba with which Babatha is also associated - see earier post) that Babatha would not be able to collect the dates once they were harvested for her Kesubah, as per R' Akiva. In order to evade this - "She sells the fruit on the tree, (67) for so long as it is attached to the tree rooted in the ground it is considered landed property, (68) and she has the right to sell it."
I think Katzoff misread the source in his footnote 6, this says: (68.) The Talmud Bavli at bKet 51a considers applying to collection for alimentation a rule, "What is ready to be reaped is considered reaped," associated with R. Meir in dispute with others, mShev 6.6 with bShev 43a, but dismisses it in connection with dates. "
This is an incorrect reading, the Talmud actually says: